The FTC has imposed new advertising restrictions on Kellogg because of the Immunity claim on Rice Krispies.  The company is not to make claims about “any health benefit of any food  unless the claims are backed by scientific evidence and not misleading.”

Under a previous order dealing with Frosted Mini-Wheats, Kellogg was not supposed to make claims about benefits to cognition on any of its cereals or snack foods unless the company could prove that the claims were backed by real science. This new decision extends that ruling to include any claim at all.

OK, but I’m confused about several aspects of this decision:

• How come the FTC is doing this and not the FDA?  At some point years ago, regulatory responsibility was split between FDA and FTC.  Since then, the FDA regulates claims on food package labels, whereas the FTC regulates advertising claims.  I realize that food labels are a form of advertising, but it’s unusual and surprising for the FTC to get involved in FDA-regulated matters.
• As FoodNavigator also wonders, why didn’t the FTC fine the company and, instead, write a harsh letter? [see update below]
• Why is the FTC doing this?  Kellogg agreed months ago to withdraw its Immunity claim ( see my November 5 post about the withdrawal).  The Immunity boxes gradually disappeared from supermarket shelves and I haven’t seen one for a long time.

So what’s going on here?  Is the FTC getting serious about regulation (and about time, too)?  Or is FDA sitting back and letting the FTC do its enforcement work?

Could this be why the FDA hasn’t sent a warning letter to Mead-Johnson, the maker of the chocolate toddler formula with three health claims aimed at kids ages 1 to 3.  I posted about this product on April 26, but haven’t heard whether the FDA is doing anything about it.  Can the FTC be on this case but waiting for investigations to be completed before taking action?

Kellogg, it seems, is under fire on all fronts.  CSPI’s Margo Wootan sent me the recent decision by the Children’s Advertising Review Unit of the Better Business Bureau that Kellogg must stop advertising Pop-Tarts to kids:

CARU was concerned that the product packaging, which features berries and states “Made with Real Fruit” for several of Kellogg’s Pop-Tarts®  products that have fruit in their names, impliedly represents to children that the products contain substantial amounts of fruit.

In fact, according to CARU, Pop-Tarts contain less than 6% fruit and less than 2% of the fruit shown in the advertising. Kellogg claimed that its marketing was not aimed at kids, but lost that one.

It’s great that regulatory agencies like FTC and FDA (and voluntary agencies like CARU) are regulating but it’s hard to keep track of who is doing what.   Nothing to do but wait and see what happens next.  Stay tuned.

Update, June 8: CSPI’s Margo Wootan writes that FTC can’t impose fines because it does not have the authority to issue civil penalties.  Ted Mermin of Public Good Law concurs.  He says:

Companies fight hard to make FTC (and similar) orders as narrow as possible, in large part to avoid precisely the situation in which they are held responsible for violating an existing injunction/order.  Since (in the Commission’s view, at least) Kellogg hadn’t violated an existing order, the FTC did not have the authority to fine them without first going to the US Department of Justice to get DOJ to take the case (a matter of a 45 day delay, if DOJ takes it at all).  The burden of that delay (and of needing to get authority from DOJ in the first place) is precisely what is driving the congressional charge for enhanced FTC authority as part of the financial reform legislation.

If the House version of financial reform legislation had been in effect, the FTC would have had the authority to seek civil penalties (i.e., fines) and the outcome here might have been different.  As it was, the fact that Kellogg had stopped the practice…kept the Commission (at least the three commissioners in the “majority”) from focusing on any remedy other than injunctive relief–that is, a broadening of the existing order from the Mini-Wheats case, with the threat of that $16,000 per violation (and an expanded area of prohibited activity) running into the future.

Update, June 11: In an editorial titled “Snake oil for breakfast,” the New York Times explains why health claims matter so much.  If you can’t believe health claims, what part of the food label can you believe?:

Businesses have been making dubious claims about their products at least since the 17th century, when the British clergyman Anthony Daffy sold Daffy’s Elixir as a cure for scurvy as well as agues, gout, rheumatism, rickets, worms and other ailments. Hucksterism — no matter how implausible the claim — lives on…[for example] POM Wonderful claimed its pomegranate juice helps treat, prevent or cure hypertension, diabetes and cancer.  This might be par for the course for an era of swift-boating political ads and a torrent of television commercials plumping for myriad wonder drugs (sudden death may result). It leaves the consumer in a quandary: what part of the label can be believed?

Today’s New York Times has an op-ed, “Crying over raw milk“, about the political fights over raw milk in Wisconsin.  The Wisconsin legislature has introduced a bill allowing dairy farmers to sell raw milk directly to consumers.  The conventional dairy industry is not happy about that.

The author of the piece, Michael Feldman, is dubious about the purported health benefits of raw milk but is quite clear about its economic benefits: “you can’t get $6 a gallon for pasteurized milk.”

Crass economics is behind much of the politics of raw milk these days.  The conventional dairy industry is in trouble: too many cows, too much milk, and not nearly enough regulation of supply.  In contrast, raw milk has passionate advocates willing to pay premium prices.

Not fair, says the dairy industry, which wants raw milk to be regulated:

In a letter to two senior members the Senate Committee on Health, Education, Labor and Pensions, the dairy groups called for a measure obliging all facilities producing raw or unpasteurized milk products for direct human consumption to “register with FDA and adhere to the tried-and-true food safety requirements that are followed by all other facilities producing milk products”.

As for the safety of raw milk, it is useful to take a look at Seattle attorney Bill Marler’s website: “Real Raw Milk Facts.”   There, he summarizes recent cases of illness caused by toxic E. coli and Salmonella contaminants in raw milk.  These constitute a full employment act for attorneys like Marler who represent victims of foodborne illness.

My position on raw milk has long been that people have a right to drink it but it had better be produced safely.  I believe that all foods–no exceptions–should be produced under well designed and carefully followed HACCP plans (or their equivalent) with pathogen testing at intervals commensurate with the level of risk.

But food safety experts tell me that raw milk can never be tested frequently enough to be confident it is safe.

Raw milk carries a greater risk of bacterial contamination than pasteurized milk and people who buy it should know what those risks are.  The risk may be small, but it is finite.  Putting a child at risk of hemolytic uremic syndrome from toxic E. coli just doesn’t make sense to me.

Like Michael Feldman, I’m dubious about the claims made for the health benefits of raw milk.  No question, it tastes better and that may be reason enough to want it.  But until I can be sure that the producer is scrupulous about safety, my personal choice favors pasteurization.

But that’s just me.  You?

My latest San Francisco Chronicle column is about calorie labeling going national and what the FDA is going to have to do to write regulations that make it work effectively.

While we are waiting for all that, how about what Burgerville is doing.  Burgerville, a fast-food chain in the Pacific Northwest, now does personalized calorie counts.  When you get your food, your receipt displays the calories for each item you ordered.  It also makes suggestions for ordering lower calorie items: “if you like the blueberry shake, you might consider getting a blueberry smoothie next time.”

Will doing something after-the-fact like this affect future food choices?  Researchers: get busy!

My newly updated book, Safe Food: The Politics of Food Safety, is just out from University of California Press.  Half the book is about the politics of genetically modified (GM) foods.  Politics explains these latest developments:

1.  FDA awards GRAS status to Monsanto’s Vistive Gold soybeans:  These beans have been genetically modified to be lower in linolenic acid and, therefore, more stable to oxidation.  Does this refer to alpha-linolenic acid (ALA)?  If so, this is an omega-3 fatty acid that gets converted in the body to the longer chain omega-3s, EPA and DHA.  Don’t we want more linolenic acid in our foods, not less? Or am I missing something here?

2.  Friends of organics in Congress want USDA to continue the ban on Roundup Ready (RR) alfalfa: The courts ruled that this alfalfa cannot be planted until USDA completes and Environmental Impact Statement (EIS), is is required by law.  According to the USDA’s preliminary assessment of the impact, RR alfalfa will not adversely affect the environment. But more than 20,000 people wrote to say that they disagreed with the USDA’s benign view.

The letter to USDA Secretary Vilsack points out that alfalfa is a major forage for dairy cows.  If USDA allows GM alfalfa to be grown, it will contaminate conventional alfalfa grown organically (through pollen drift).  If organic dairy producers cannot get uncontaminated organic alfalfa to feed their cows, they will not be able to get their milk certified as organic.

3.  USDA says it will do an EIS for GM sugar beets: Last year, a judge ruled that GM sugar beets, which now comprise 90% or more of sugar beet plantings, could not be planted again until the USDA did an EIS.  Oops.  Somehow, the USDA forgot to do an EIS in 2005 when it allowed GM beets to be planted.

What are GM sugar beet producers supposed to do now? Apparently, a hearing to decide the main issues of a lawsuit (Center for Food Safety v. Schafer) has been scheduled for July 9.  At that hearing, the court is supposed to decide whether RR sugar beets should be banned until USDA does the EIS.  This is awkward because the EIS is expected to take 2 or 3 years.  Why?  Because it must consider:

• Management practices for organic sugar beets, conventional sugar beets, and glyphosate-tolerant (Roundup Ready) sugar beets
• Potential impacts on food and feed
• Occurrence of common and serious weeds found in sugar beet systems and practices for controlling them
• Potential for gene flow from Roundup resistant sugar beet to other plant species
• Economic and social impacts on organic and conventional sugar beets, Swiss chard, and table beet farmers
• Potential health impacts

4.  Most American consumers will accept GM wheat if it is produced sustainably, at least according to the results of a survey done by the International Food Information Council, a food industry group:

Although commercially available genetically modified (GM) wheat crops are likely to be at least a decade away, 80 percent of survey respondents said they would be likely to purchase bread, crackers, cookies, cereal, or pasta products containing GM wheat “if they were produced using sustainable practices to feed more people using fewer resources such as land and pesticides.” And consistent with the 2008 survey, 77 percent of respondents said they would buy foods produced through biotechnology if they helped cut pesticide use.

Now, if only they would!

I don’t know how Michele Simon finds these things but she has just sent me this link to the latest video advertisement for Kraft’s Lunchables on YouTube’s Kids’ Channel.

As Melanie Warner points out,  Kraft has promised not to advertise its junk foods to kids under the age of 12.

Or maybe Kraft just means this to be advertising its “better-for-you” Lunchables?  The ones that are slightly lower in saturated fat, salt, and sugars?

What do you suppose an ad like this costs?

Oh those British libel laws.   According to FoodNavigator.com, a judge in Britain has just ruled that Asda, a grocery company in the UK, may not legally describe aspartame, the artificial sweetener, as “nasty.”

This decision is a reversal of a previous High Court ruling that “nasty” has only a vague meeting and does not constitute “malicious falsehood.”  The Court of Appeals reversed that ruling.

A spokeswoman for the maker of aspartame, Ajinomoto, said: “Asda can no longer deny that describing aspartame as a ‘nasty’ denigrates a safe and beneficial food ingredient.” Ajinomoto will now proceed with its malicious falsehood case… We will continue to pursue our case and defend the reputation of aspartame.”

This parsing of the meaning of “nasty” would be deliciously academic if we didn’t have our own veggie libel laws to contend with.

And as FoodNavigator puts it:

The case could have wider implications for firms employing emotive rhetoric about additives in marketing materials, notably Pret A Manger, which last year urged shoppers to “avoid hairy chemicals”, which were defined as “obscure chemicals, additives and preservatives … the nasties we avoid at all costs”.

In April, the Institute of Medicine published a study concluding that salt poses so serious a health hazard that the FDA should start regulating it as a food additive.

Last week, Mitchell Moss produced a lengthy piece in the New York Times, “The hard sell on salt,” detailing the food industry’s resistance to salt reduction:

The industry is working overtly and behind the scenes to fend off these attacks, using a shifting set of tactics that have defeated similar efforts for 30 years, records and interviews show. Industry insiders call the strategy “delay and divert” and say companies have a powerful incentive to fight back: they crave salt as a low-cost way to create tastes and textures. Doing without it risks losing customers, and replacing it with more expensive ingredients risks losing profits.

Now we have Judith Shulevitz’s piece in The New Republic, “Is salt the new crack?”  She concludes:

We need to stop ingesting all these substances in ludicrous amounts…We need to be taught not just what’s in processed food, but how historically anomalous its manufacture and our consumption of it are. We need to understand the mechanisms that addict us to it. We need to relearn how to prepare real meals, and we need to start rethinking the social dynamics of that chore (it can’t just be up to wives and mothers anymore). It’s pretty hard to imagine the government conducting that education campaign, but, 20 years ago, it may have been just as hard to imagine the “truth campaign” that exposed the tobacco industry’s marketing techniques and the transformation of social norms that made it déclassé to smoke.

As I keep saying (see previous posts), the salt issue is one of personal choice.  If I want to eat less salt, I cannot eat processed foods or restaurant foods because that’s where 80% of the salt in American diets comes from.  As Moss explains, PepsiCo cannot make Cheetos without salt.  I can just say no to Cheetos, but eating out is a challenge.

No, salt is not the new crack, but I’m glad that changing food social norms is becoming part of the national conversation.

Food safety is in the news again.

Congressman John Dingell (D-Mich) is calling on the Senate to get busy and pass the food safety bill that it has been sitting on for the last ten months: “I urge my Senate colleagues to acknowledge this important threat and make legislation addressing it a priority. Until the Senate acts, American families will continue to be at risk.”

If this bill ever passes it will require food companies to develop food safety plans, authorize the FDA to order recalls, and give the FDA better access to company records.

But will it do any good?

Here is one view from Dennis Stearns, counsel in the Seattle law firm, Marler & Clark, which represents victims of foodborne illnesses.  In a piece in Food Safety News, “What the oil spill can teach us about food safety,” he notes the endlessly repetitive responses–all talk, no action–to food safety and other crises involving corporate irresponsibility.

He quotes USDA Secretary Vilsack saying, “You can’t have two [food safety] systems and be able to reassure people you’ve got the job covered…This [referring to the peanut recalls of last year] is a grand opportunity for us to take a step back and rethink our approach.'”

Stearns’ piece concludes with this comment on Vilsack’s remarks:

Sadly, this was not the first time that someone had pointed out the need for systemic revision to food safety regulation and inspection in the United States. And neither was it the first time that expressions of outrage over people dying from foodborne illness were followed by no real changes at all. And all I can say about that is: I’m shocked! No, really, I’m shocked!

In contrast, Jim Prevor,who writes as the Perishable Pundit, writes in the online New Atlantis: A Journal of Science and Technology that fixing the FDA will do little to address food safety problems.  Instead, he recommends:

• Fix the liability system so retailers as well as producers are liable and make it legal negligence, not strict liability.
• Root out bribery and corruption in food safety certification.
• Invest in state testing laboratories.
• Invest in food safety research.
• Revitalize the Agricultural Extension Service.
• Educate consumers.

I’m not sure about the legal liability issues, but most of the rest are really good ideas and would help a lot.  Of course consumers should follow food safety procedures but how about getting safe food to them in the first place?

None of this will happen without policy changes, which is why the food safety legislation matters so much.  It’s a national scandal that the Senate is still sitting on that bill.